McLane v. Leicht

• Decision Date: 05 October 1886
• Citation: 69 Iowa 401,29 N.W. 327
• Parties: MCLANE AND OTHERS v. LEICHT.
• Court: Iowa Supreme Court

69 Iowa 401

29 N.W. 327

MCLANE AND OTHERS

v.LEICHT.

Supreme Court of Iowa.

October 5, 1886.

Appeal from Des Moines district court.

Action in equity. The facts are stated in the opinion. The relief asked by the plaintiffs was granted, and the defendant appeals.P. Henry Smyth & Son and S. L. Glasgow, for appellant.

Newman & Blake, for appellees.

SEEVERS, J.

The petition states that plaintiffs are citizens of the county of Des Moines, and that defendant, in said county, in a building situate on a part of lot No. 197, in the city of Burlington, has established, and is now maintaining, a place for the sale of intoxicating liquors as a beverage, contrary to the laws of Iowa, and has sold, and continues to unlawfully sell, intoxicating liquors at said place, whereby he has established, and is now establishing, a nuisance, to the great injury and damage of the plaintiffs and other citizens, and their peace and safety; that defendant is the owner of the lot and building aforesaid, and also of certain whisky, beer, and other intoxicating liquors kept for illegal sale, as aforesaid, and also of certain furniture and fixtures on said premises, used in said business. The relief asked is that an injunction may be isssued restraining the defendant from carrying on said business, and that the nuisance be abated.

The defendant answered the petition, and admitted that he is the owner of the real estate described in the petition, and the brick building situated thereon, and also stated that “many years prior to the enactment by the legislature of the state of Iowa of the law under which this action is brought, to-wit, chapter 143 of the Acts of the Twentieth General Assembly of said state, said building was erected by the defendant's grantor, for the express purpose of being used as a place for the sale of beverages such as the law at that time authorized and permitted; that said premises were erected and fitted up at great expense, and adapted to said particular use, and that, before the enactment of said law, the defendant, with a view of such use hereinbefore described, purchased said property at a cost of $13,000 to be so used by him in a business at that time authorized by the laws of the state; that the use of the premises for said purpose is to him of great value, to-wit, of the value of $2,000 per annum; that if said law is held to be operative and constitutional, and he is prohibited from using said building for the purposes for which it was erected and fitted up, great loss and damage will result to defendant, and his property will be thus destroyed and taken from him without compensation, and without due process of law; and defendant claims and submits, upon advice of counsel, that said law is in conflict with the fourteenth amendment to the constitution, and therefore void. It is further stated in the answer that the defendant, in his business aforesaid, has dealings with the citizens of the state of Illinois, who are his customers in said business. and to give effect to said act of the legislature of Iowa will interfere with such business between the defendant and such citizens of the state of Illinois as desire to deal with him, and thereby deprive him of a right which he believes himself entitled to, and that said act is in conflict with the fourteenth amendment to the constitution of the United States, and section 8, art. 1, of said constitution. It is further stated in the answer that section 12 of said act of the legislature of Iowa is in conflict with the constitution of the United States, because it is a penal statute, and cannot be enforced by a suit in equity; nor can such an action be maintained to enjoin or punish for a crime committed, or about to be committed. The defendant also filed a petition, asking that the cause be removed to the circuit court of the United States, on the ground that the matter and amount in dispute in this suit exceeds, exclusive of costs, the sum or value of $500, and that the controversy in said suit involves questions arising under the laws and constitution of the United States. The court overruled the petition, and from such order the defendant appealed.

1. The plaintiffs and defendant are citizens of this state; and, if this action is removable from the state to the federal courts, it is removable under the act of congress of March 3, 1875, which provides, in substance, that controversies between citizens of the same state, arising under the constitution and laws of the United States, may be removed from the state to the United States courts. 18 U. S. St. at Large, 470. Under this statute, there must exist such a controversy, and the petition for removal so stated. It is obvious, however, we think, that the court is not bound hand and feet by this statement, which, at most, is but a legal conclusion. Before there can be such a removal the court must determine there is such a controversy. This is the plain import of the statute. For this purpose we must ascertain what the issue is, and what is in controversy, by an examination of the pleadings. The supreme court of the United States has said: “We fully recognize the principle, heretofore asserted in many cases, that...